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Pressure Builds Against Mogoeng Nomination Legalbrief | your legal news hub Tuesday 28 September 2021 Pressure builds against Mogoeng nomination Questions continue to be asked about the fitness of Judge Mogoeng Mogoeng to hold the office of Chief Justice, placing President Jacob Zuma's candidate in a difficult position ahead of an expected grilling over his support for the death penalty, his lack of experience and his alleged homophobia when the JSC holds public hearings on the nomination on Saturday. In a submission to the JSC, the National Association of Democratic Lawyers (Nadel) has questioned Mogoeng's support of the death penalty in a case heard in Bophuthatswana in 1988, notes a Business Day report. 'It is not merely the death sentence itself, but its use and application during the apartheid years that inform Nadel's concerns,' the association says (see report below). The Cape Bar Council and the Johannesburg Bar Council have also opposed Mogoeng's nomination. 'The (Cape Bar) is ... at a loss to understand how a 51-year-old judge with less than two years' experience on the Constitutional Court and less than a handful of truly significant judgments could be preferred as Chief Justice to the 63-year-old Deputy Chief Justice (Dikgang Moseneke),' the Bar wrote in its submission. The Johannesburg Bar Council was equally scathing, questioning Mogoeng's commitment to the Bill of Rights and judicial ethics. According to a report on the News24 site, the Bar Council's response was obtained by Media24 Investigations shortly after it was submitted to the JSC. The report says this submission is the strongest criticism to emerge from his legal peers over his nomination. According to the report, the organisation sharply criticised Mogoeng for not removing himself from a case in which his wife was the prosecutor and said he should have informed the accused of his relationship. The council also criticised him for not giving reasons why he differed with his colleagues in the Constitutional Court who ruled that a person could not be defamed by being labelled a homosexual. Full report on the News24 site Full Business Day report Mogoeng's support for the death penalty is raised in a City Press report. It says Nadel has lashed out at Mogoeng's 'active participation' in pushing in 1988 for a man whose original legal team did not represent him properly, to be executed. The report says that in 1988, Mogoeng appeared as state advocate for the Justice Minister in the former Bophuthatswana Supreme Court to oppose an application by a convicted man for a stay of execution. A day before he would have been hanged, the man (referred to as Ngobenza in the judgment) asked the court to postpone his execution pending a new appeal against his conviction and a clemency application. Ngobenza believed his case had not been properly presented by his lawyers. Then Judge President of Bophuthatswana, Theal Stewart, eventually granted the stay of execution after it became clear to him that there was a chance the man could successfully appeal against his case. Stewart disagreed with Mogoeng's insistence that, under the circumstances, Ngobenza's execution should go ahead. Nadel spokesperson Khanya Jele told City Press that unanswered questions remain about Mogoeng's career as state advocate between 1986 and 1990. The JSC should question him on this, she said. Full City Press report The judge is also taking flak over two controversial judgments on marital rape he handed down while he was a High Court judge, says a Mail & Guardian report. It notes the judgments support widespread concerns that Mogoeng's judicial outlook is at variance with SA's liberal democratic Constitution, particularly with regard to women's rights. They have prompted submissions by a range of civil society groups, including public interest organisation Section 27, to the JSC, arguing he is not a suitable candidate for Chief Justice. In one appeal, Mogoeng suspended a convicted rapist's two-year jail sentence on the grounds that he had been 'aroused' by his wife and had used 'minimum force'. In the other case, a man was initially sentenced to 10 years' imprisonment after raping his wife. While upholding the conviction, Mogoeng reduced the sentence to five years' imprisonment on grounds that 'the nature of the complainant and appellant's relationship is such that it renders their intercourse incapable of being legally categorised as rape'. Legal experts point out that he was mistaken - at that time marital rape was already deemed illegal under the Family Violence Act of 1993. Based on these and other judgments, Section 27 was to lodge an objection to Mogoeng's nomination with the JSC, on behalf of the Treatment Action Campaign, the Lesbian and Gay Equality Project and Sonke Gender Justice Network. Full Mail & Guardian Online report Mogoeng application and judgments (PDF file) One of the judgments Mogoeng is criticised for most is also one of his proudest achievements, according to a report in Beeld. It says that in his JSC questionnaire, Mogoeng lists his minority judgment in the case between The Citizen and Robert McBride as one of his most valuable contributions to the law, as it 'creates a balance between freedom of expression and the right to dignity, especially when taking note of ubuntu'. The report points out that Mogoeng held in the judgment that the newspaper went too far by calling McBride a murderer, describing it as an attack on traditional values that should not be allowed. Beeld notes that his critics have used the same judgment as a basis to question his commitment to freedom of speech. Full Beeld report Mogoeng's religious activities have again come under scrutiny. A report in Die Burger claims Mogoeng has been counselling parishioners of the Winners Chapel Church in Johannesburg so that they can be 'cured' of homosexuality, 'deviations' and illness. The report says when parishioners ask to be saved and cured, Mogoeng is one of the pastors to whom they turn. A senior pastor of Winners Chapel International, Samuel Dennar, reportedly confirmed that the church views homosexuality as an unacceptable deviation that is condemned in the Bible. 'We change and reform such conduct through prayer and counselling as the Bible dictates. We don't condemn anybody and help everybody,' he is quoted as saying. Dennar rejects fears that Mogoeng will apply (in law) what his church preaches. 'All that I can say is that he is an honest, sincere and hard-working church man.' Full report in Die Burger The Cape Bar wants Mogoeng to explain his membership of a church that condemns homosexuality, according to a report in Die Burger. 'All South Africans naturally have a right to freedom of religion, but there is a reasonable perception that Judge Mogoeng - as pastor in a church which apparently supports sentiments in conflict with the Constitution - doesn't underwrite all the rights and protection afforded by the Constitution,' the submission reads. It also says the nomination of a single candidate creates the impression that the consultation process is a mere formality. And it takes issue with the fact that Mogoeng completed his JSC questionnaire to establish his suitability only after he was publicly nominated. Full report in Die Burger The question now is how Zuma and the ANC will handle the growing opposition. According to a report in The Times, Raylene Keightley, director of the Centre for Applied Legal Studies, at Wits University, said the ground-swell of condemnation would 'test institutions in place under the Constitution for the appointment of the Chief Justice'. She added: 'What is critical now is whether the JSC will do the political thing or take the public criticism seriously and build a strong interrogation (of Mogoeng),' said Keightley. Full report in The Times .
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